TCS defends US visa use in anti-white worker bias case

An anti-TCS decision tomorrow may encourage white Americans to pursue similar suits against other cos with heavily foreign workforces.Bloomberg | October 04, 2017, 09:35 IST

By Edvard Pettersson

As India’s Tata Consultancy Services Ltd. is squeezed by the Trump administration to reduce the use of overseas workers for U.S. jobs, the information technology outsourcing giant is also fighting claims in court that its hiring practices are anti-American.

TCS, Asia’s largest software maker, and Infosys Ltd., a rival Indian outsourcing firm, are both embroiled in civil rights lawsuits accusing them of discriminating against white IT workers that predate Donald Trump’s election last year.

Even as the outsourcers are responding to the president’s protectionist agenda by hiring more Americans in the U.S., Mumbai-based TCS cites its reliance on foreign guest-worker visas as a defense against the bias claims.

The men suing TCS allege discriminatory hiring practices explain why as much as 79 percent of its U.S. workforce is South Asian when that group makes up only 12.5 percent of the relevant labor market in the U.S.

But the company contends it’s misleading to include employees hired in India to work temporarily and “legally” in the U.S., many with H1-B visas for specially skilled employees. It also says more than 40 percent of its job applicants are South Asians and that not everyone is keen on working for an India-based company or willing to relocate to take a job.

Summary JudgmentAt a hearing Tuesday in federal court in Oakland, California, on whether to dismiss the case entirely, U.S. District Judge Yvonne Gonzalez Rogers said she would take the issue under submission. She indicated that she would deny the motion for summary judgment, at least as far as it involves white U.S. employees who were fired from Tata. She was less impressed by the evidence that Tata discriminates against white job applicants.

She told Tata’s lawyers that the plaintiffs “have evidence that they can present to a jury. Whether or not it is persuasive, I am not here to decide.”

The judge didn’t rule on whether to certify the suit as a class action, which would expand it to include potentially of thousands of American workers who either weren’t hired or were fired by TCS because of their race over the past six years.

If the case does proceed as a class action, it may encourage white Americans to pursue similar suits against other companies with heavily foreign workforces, said Andra Greene, a lawyer with Irell & Manella LLP in Newport Beach, California, who isn’t involved in the TCS suit.

‘Masters’ at Statistics

Greene also said it’s a “close” call which side’s numerical analysis will prevail in court. "People are masters at using statistics to argue their point,” she said.

After campaigning on a pledge to punish American companies for moving jobs overseas, Trump put pressure on the offshore IT servicing firms in April when he signed an executive order aimed at overhauling the work-visa programs they use to bring workers to the U.S. The next month, Infosys, which employs about 200,000 people around the world, said it planned to hire 10,000 Americans over the next two years.

The lawsuit against TCS was filed in 2015 by a white IT worker who claimed he was subject to “substantial anti-American sentiment” within the company and was ultimately terminated within 20 months despite having almost 20 years of experience in the field. He was later replaced as the lead plaintiff by two other men.

One, Brian Buchanan, said he worked at Southern California Edison for 28 years when the company outsourced the bulk of its IT work to TCS. He was among 400 people terminated, but said he was asked to stay on for a few months to train the Indian TCS employees that were replacing him. Buchanan claims that at a job fair organized for the employees losing their jobs, the South Asian TCS regional manager was dismissive of interest in a position.

TCS says Buchanan’s experience doesn’t prove he was a victim of bias. He has ”no idea” whether the application process was discriminatory because he didn’t attend any of the town hall meetings he was invited to during the Edison transition to learn about open positions with TCS and how to apply for them -- and he didn’t apply for a specific job, the company said in a court filing.

“Buchanan’s mere conjecture that he would have received more attention at the job fair if he were not an ‘old bald white man’ is not supported by any facts in the record," lawyers for TCS wrote.

While the company has a stronger defense if the men suing can’t point to any specific evidence that they were mistreated because they aren’t South Asian, that won’t necessarily carry the day, Greene said.

"Usually they don’t tell you I’m not hiring you because you’re white," she said.

As for the broader claim that TCS engages in institutional discrimination against Americans, the plaintiffs claim the “highly skewed” workforce results from “a corporate directive to favor visa-ready South Asian Indian national candidates to fill U.S. positions and the use of third-party recruiters that forward to Tata a substantial percentage of South Asian Indian national candidates.”

The company contends there’s a “non-discriminatory” explanation that includes its use of workers with guest visas.

"These individuals are existing employees, were hired in India, and are thus hired from a completely different labor market," the company said in a filing. "They cannot be used to create a statistical disparity between TCS’ workforce and the United States labor market."

The company is “is confident that its evidence, data, and expert analysis” will persuade the judge not to let the case to advance as a class action and expects the claims will be thrown out, said Benjamin Trounson, a spokesman for TCS in North America.

The plaintiffs’ lawyers declined to comment ahead of Tuesday’s hearing.

The four workers who sued Infosys over similar allegations four years ago in Milwaukee are represented by the same law firm that filed the TCS suit. The Infosys case is also awaiting a judge’s decision on dueling requests for dismissal and class-action status.

The TCS case is Heldt v. Tata Consultancy Services Ltd., 15-cv-01696, U.S. District Court, Northern District of California (Oakland).